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Roberts v. Green Ridge Nursing Home

May 4, 2007

FRANCES ROBERTS, PERSONAL REPRESENTATIVE OF MAMIE CARBINO, DECEASED, PLAINTIFFS
v.
GREEN RIDGE NURSING HOME, GREEN RIDGE LEASING PARTNERSHIP, D/B/A GREEN RIDGE NURSING HOME AND LEHIGH NURSING CORP. DEFENDANTS
v.
UNITED STATES OF AMERICA THIRD PARTY DEFENDANT



The opinion of the court was delivered by: (judge Vanaskie)

MEMORANDUM

This matter is before the Court on the United States' motion to dismiss the third-party complaint. Plaintiff Francis Roberts, as the personal representative of her deceased mother, Mamie Carbino, filed a complaint against Green Ridge Nursing Home and Green Ridge Leasing Partnership (the "Green Ridge Defendants") in the Court of Common Pleas of Lackawanna County, Pennsylvania, claiming that the Green Ridge Defendants breached a duty of care to Ms. Carbino. The Green Ridge Defendants subsequently filed a third-party complaint against Dr. Wasique Mirza, seeking indemnification and contribution. Dr. Mirza removed the case to this Court and the United States filed a notice of substitution for Dr. Mirza as third-party defendant. The United States then filed a motion to dismiss the third-party complaint on June 13, 2006. Because the Green Ridge Defendants assert a viable claim for contribution, the United States' motion will be denied.

I. BACKGROUND

A. Factual Background*fn1

Ms. Carbino, at the age of ninety-two (92), was admitted into the Green Ridge Nursing Home in mid-July 1999 after receiving medical attention at the Community Medical Center for a fall in her home. (Second Am. Third-Party Compl. (Dkt. Entry 16) ¶¶ 1-3.) At the time, Ms. Carbino was suffering from Parkinson's disease, left stroke, congestive heart failure, aortic abdominal aneurysm, renal insufficiency, and poor appetite. (Id. ¶ 2.) On August 13, 1999, Ms. Carbino was prescribed Zoloft for treatment of depression. (Id. ¶ 9.)

On August 23, 1999, Dr. Mirza assumed physician care duties for Ms. Carbino. (Id. ¶ 4.) He prescribed her Digitalis and Lasix.*fn2 (Id. ¶ 5.) He doubled the dosage of Lasix on October 11, 1999. (Id. ¶ 6.) Though Dr. Mirza noted that Ms. Carbino's lack of appetite may be related to depression, he discontinued prescribing Zoloft on October 12, 1999, at Ms. Carbino's daughter's request. (Id. ¶¶ 11, 13.) Ms. Carbino subsequently experienced a decrease in appetite. (Id. ¶ 14.) Green Ridge Nursing Home contacted Dr. Mirza several times about Ms. Carbino's decreased appetite. (Id. ¶¶ 15, 22-23.) Dr. Mirza re-started Ms. Carbino on Zoloft on November 15, 1999. (Id. ¶ 24.)

On November 17, 1999, Ms. Carbino's health declined. (Id. ¶ 25.) She was transferred to Mercy Hospital that night and examined by Dr. Mirza. (Id. ¶ 35.) She was diagnosed with "Prerenal azotemia, acute renal failure secondary to poor oral intake secondary to hypokalemia and digitalis toxicity."*fn3 (Id. ¶ 35.) The medicine prescribed by Dr. Mirza "can contribute to hypokalemia and digitalis toxicity." (Id. ¶¶ 5, 7.) Ms. Carbino's condition did not improve at Mercy Hospital, and she died on November 21, 1999. (Id. ¶ 37.)

B. Procedural Background

Ms. Roberts initiated this action on behalf of her deceased mother on November 19, 2001, by filing a Praecipe for Writ of Summons in the Court of Common Pleas of Lackawanna County, Pennsylvania, directed to the Green Ridge Defendants.*fn4 (Defs.' Br. Opp. Ex. 2 (Dkt. Entry 23-3).) The Praecipe for Writ of Summons was reissued the following day to include Dr. Mirza.*fn5 (Id.)

On May 20, 2002, Ms. Roberts filed an administrative claim on behalf of Ms. Carbino against the United States as the employer of Dr. Mirza under section 2675(a) of the Federal Tort Claims Act. (See Letter from Richard Bergeron, Acting Deputy Assoc. Gen. Counsel, Dep't of Health & Human Servs., to Howard Terreri of Nov. 8, 2004, United States' Br. Supp. Mot. Dismiss Ex. A (Dkt. Entry 20-2).) The Department of Health & Human Services denied Ms. Roberts' claim, finding that "[t]he evidence fails to establish that Ms. Carbino's death was due to the negligent or wrongful act or omission of a federal government employee." (Id. at 1.)

Pursuant to Rule 1037(a) of the Pennsylvania Rules of Civil Procedures, the Green Ridge Defendants requested that Ms. Roberts file a complaint. (Defs.' Br. Opp. Ex. 1 (Dkt. Entry 23-2).) Dr. Mirza did not make a similar request. In response to the Green Ridge Defendants' request, Ms. Roberts filed a complaint on January 13, 2003. She amended the complaint on February 21, 2003, and again on July 11, 2005. In her second amended complaint, Ms. Roberts alleges that the Green Ridge Defendants breached their duty of care in providing her mother nursing care assistance. (Second Am. Compl., Notice of Removal Ex. A (Dkt. Entry 2).) The second amended complaint does not include any allegations against Dr. Mirza. (Id.)

In addition to filing an Answer to Ms. Robert's complaint, (Dkt. Entry 3), the Green Ridge Defendants filed a cross-claim against Dr. Mirza seeking contribution or indemnity on Ms. Roberts' claims.*fn6 (Cross-Claim, Notice of Removal Ex. B (Dkt. Entry 3) ¶ 7; see also Second Am. Third-Party Compl. (Dkt. Entry 16) ¶ 62.) Dr. Mirza subsequently removed the matter to this Court pursuant to section 2679(d)(2) of the Federal Tort Claims Act, claiming that he was acting within the scope of his employment as an employee of the United States when he provided medical care and treatment to the deceased. (Notice of Removal (Dkt. Entry 1).) The Green Ridge Defendants have substituted the United States as the third-party defendant for Dr. Mirza. (Second Am. Third-Party Compl. (Dkt. Entry 16).)

Before the Court is the United States' motion to dismiss the Green Ridge Defendants' third-party complaint. (Dkt. Entry 19.) The United States argues that the Green Ridge Defendants cannot seek contribution from the United States, as the United States cannot be found directly liable to Ms. Roberts due to the expiration of the limitations period to pursue a tort claim against the United States. (Third-Party Def.'s Br. Supp. (Dkt. Entry 20) at 3-4, 9-10 (citing 28 U.S.C. ยง ...


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